Attorneys before the Supreme Court have multiple goals. Whether the ultimate goal is winning a case, affecting public policy, or testing the constitutionality of a piece of legislation, good counsel get the justices’ attention. How they get the justices’ attention varies. Some engender attention through their regular experience before the Court while others through the firms or groups they work with or represent. The justices tend to listen to arguments from the United States’ attorneys (representing the Executive Branch) in the Office of Solicitor General (OSG) as the Executive’s positions on issues before the Court are often essential to particular decisions. How can we gauge the efficacy of certain attorneys and their arguments? One concrete way is through their reference in the Courts opinions.
Even veteran Supreme Court attorneys need to make well-formed, cogent arguments to engender citations in Supreme Court opinions. There are multiple reasons for this requirement. First there are many arguments in each case coming from a pool of sources. With typically multiple amicus briefs in each case along with the merits briefs the Court has an overabundance of resources at its disposal. Generally, only persuasive arguments that are uniquely attributable to particular briefs find their way into the Court’s opinions (briefs are sometimes cited for their recitation of the facts as well). This is one of the few gauges attorneys have of when they make an impact on Supreme Court decisions. Even winning attorneys have little guarantee that their particular arguments compelled the Court’s outcome. Only through reference in the Court’s opinions can we differentiate points that particularly focused the Court’s attention and that the justices felt sufficiently warranted their mention or response.
At the case level there is a broad spectrum of citation volume. While some cases lack any reference to the briefs, the case with the most citations to the briefs this term, Cooper v. Harris cited the briefs in sixteen instances (mostly one brief). The main contributor to this citation count is readily apparent in the graph below looking at the most cited briefs by attorney in a single case this term.
Paul Clement’s brief for the appellants in Cooper is a good example of how a well-argued brief still may not sway the justices’ decision on the merits. In this case, the Court affirmed the lower court’s decision that “the district court did not err in concluding that race furnished the predominant rationale for District 1’s redesign.” Even though the side Clement represented did not win the case, the opinion by Justice Kagan went to great lengths to explain why the Court did not adopt the appellant’s position.
The number of cites to Clement in Cooper exceeds citations to all other briefs this term, even those on behalf of the United States. The United States’ position is regularly referenced in the Court’s opinions though just as the United States is either a party on the merits or an amicus in most cases the Court hears. This regularity of appearance is clear in the following graph.
The United States’ position was cited in nineteen cases so far this term. The maximum number of times the United States’ briefs were mentioned in a case was six, both in Beckles case and in NLRB v. SW General. As the counsel of record on the US’ briefs is always the SG, the OSG attorneys that most assisted in writing the briefs are difficult to discern. One attorney that is generally well versed in a given US case is the attorney that argues before the Court, although this individual is not necessarily the main brief writer. For this reason the graph above does not reference the author of the US’ briefs.
While impact in a single case is one measure of a strong brief, strong brief writers are notable for their references in multiple Court opinions. Even attorneys with several representations in a term are not guaranteed citations in the Court’s opinions. One non-governmental counsel of record was mentioned in more than twice as many cases as the next most referenced counsel.
Neal Kaytal’s briefs were already cited in five opinions this term. All other attorneys cited in multiple cases were cited in two. These include two states’ attorneys – Frederick Yarger for Colorado and Scott Keller for Texas, as well as three Supreme Court veterans – Paul Clement, Seth Waxman, and Lisa Blatt (Clement and Waxman were both previously SG’s while Blatt was an assistant SG).
The American Association on Intellectual and Developmental Disabilities’ brief by the University of New Mexico’s James Ellis in Moore was cited three times, exceeding the number of citations to any other non-US amici.
A limited number of compelling law review articles are also cited in the justices’ opinions. This term’s cases were patent-intensive and many of these citations were in patent and other intellectual property-related cases. The Court even cited two articles by Stanford Professor Mark Lemley’s articles in SCA Hygiene.
*Note these are only references to law review or law journal articles
Law reviews with multiple citations already this term include the Virginia Law Review (three) and the Yale Law Journal (two).
Although the Court has released forty-seven slip opinions so far this term it still has opinions to release in almost one-third of its cases. These will come out by the end of the Court’s term on June 26th. As the opinions in these cases may weigh on the data in this post, I will update this post with any significant changes at the end of the term.
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